Diplomatic Privileges and Immunities Amendment Bill

New clause 2A in Supplementary Order Paper 190 is the clause that will extend privileges and immunities to members, private servants, and family members of European Commission delegations. Supplementary Order Paper 190 has been tabled only today, and members are trying to ascertain exactly what the wording in new clause 2A covers.

The clause basically inserts new section 9AB, and it has five subsections, and most of what they are doing is reasonably clear. For example, subsection (1) deals with issues of members of the delegation, and covers the immunities and privileges addressed in the third schedule; subsection 2 covers the issue of, I think, the fourth schedule, and things like servants and staff, etc. The fifth schedule is referred to in subsection (3), which covers particular issues that are normal parts of diplomatic immunities and privilege. It covers families that form part of the household of members of delegations.

But I would appreciate advice from the Minister as to exactly why subsection (5) is necessary. If we look at the original Act, section 9(2) is contained in Part 2. Subsection (5) states: “An Order made under section 9(2)(a) in respect of the European Commission may, in accordance with this section, also confer privileges and immunities on members, or on private servants of members, of EC delegations”—that is fine—“and nothing in this section limits the application of section 9(2)(b) and (c) to persons associated with the European Commission.”

I am a little bit curious about why it is necessary to put that provision in there. Is that subsection (5) inserted there simply to avoid any doubt whatsoever, or are we making some change by that? I do not see why new section 9AB particularly changes, beyond what is specified, the old sections 9(2)(a), (b), and (c) referred to in this new section 9AB. I realise it is a bit confusing with all those sections, but I see nothing exceptional about what Supplementary Order Paper 190 is proposing in those new subsections under 9AB(1), (2), (3), and (4). They seem to be quite normal to me.

The bit that I do not understand—and we have not had this Supplementary Order Paper for more than an hour or so—is why subsection (5) is required there, particularly the last bit of it, and what it means: “… nothing in this section limits the application of section 9(2)(b) and (c) to persons associated with the European Commission.” If we look at what section 9(2)(b) and (c) does, we see that it confers on other persons, representatives, classes of officers, and servants, etc., certain privileges and immunities, and I do not see why it is necessary to have that provision in this Supplementary Order Paper.

I must confess that in the limited time we have had available I have tried to work through exactly what is going on there—I have had the statute out—but it is not clear to me. I am sure that if it is not clear to me, it will not be clear to many members of the House, because it is quite complex. It is worth the Minister in the chair, the Hon Marian Hobbs, taking the time to explain to members exactly what that provision is doing, because it is not absolutely clear on the surface.

The addition to that particular subsection—the three lines in subsection (5) that the member referred to—was added by the Parliamentary Counsel Office, absolutely to avoid doubt that one can apply the exemptions under section 9(2)(b) and (c) to officials visiting New Zealand who are colleagues of diplomats already in New Zealand—if members can understand that. Let us say there is a diplomatic group, the members of the French Embassy in New Zealand. A French delegation is visiting New Zealand, so that provision applies to its members in just the same way. It is normal practice. Because that particular section was specifically designed for the European Commission, the Parliamentary Counsel Office wanted to doubly ensure that when an EC delegation comes in to the EC office in New Zealand, the legislation covers its members—just as it does in other diplomatic practice.

I would like to address that matter. The first point I note is that Supplementary Order Paper 190, which, nevertheless, the National Party will support, was tabled today. The concern I raise is essentially procedural. As I noted in my earlier contribution, this legislation is primarily about the International Criminal Court, and a very vigorous debate about issues related to the proceedings was conducted last week and, indeed, when the bill was introduced.

Today—literally—we have a Supplementary Order Paper that is four pages in length. It is of reasonably complex drafting, and uses the vehicle of this bill, by virtue of its generalised heading, to provide diplomatic immunity to representatives of the European Community. In essence, the European Community is being treated as if it were another State. There are good and proper reasons why that has to be done, and that is why we will support the bill. But I have to say we have seen an egregious practice develop over time by which the Government uses Supplementary Order Papers well beyond the purposes that people might imagine they are used for. The normal practice is that a Supplementary Order Paper is there to correct a particular error in drafting, or something of that nature. So, essentially, it stays within the subject matter that the select committee members themselves thought they were dealing with. That is the general philosophy of the Supplementary Order Paper mechanism, and everyone recognises that it is necessary.

There has been a practice, however, as in this instance, of this Government using Supplementary Order Papers in a much broader way—essentially, to put in a new purpose for legislation. I remind the Government of the trouble it got into some time ago, when the Attorney-General, in fact, and the Minister of Justice sought to introduce, not without notice, on the same day a Supplementary Order Paper that introduced a new criminal offence—the offence of criminal defamation. The difficulty we have is that major changes are made to our law without reference to a select committee. Sometimes that is justifiable, but the issue is more serious than that in this instance, because the changes were introduced without notice. In this case, we acknowledge that representatives of the European Community do need immunity, but, frankly, that provision should have been introduced with a little more notice than 1 day—or on this very day. It could have been done last week. It could at least have been properly signalled last week in the House. It was not done in the way it should have been.

So I raise this generalised point: this is a dangerous way of making legislation. It is a trap that leads inevitably to bad law, which, often, then has to be undone. I invite the Government, in the limited time in office it still has, to think, and not do that—not abuse the parliamentary process in that way. It brings this House, the governmental processes, and the integrity of our laws into discredit. The Government might be happy with that, amazingly enough, but on our side of the Chamber we are not happy with that kind of abuse of process, as I regard it. The Minister may say I am overextending the point, but there have been precedents in this Parliament that were dangerous, that had to be backtracked on, and that were a grave breach of the civil rights of the people of this nation. It is a practice this Government has yet to learn not to do. So I guess in its last 18 months we will see not only the panicked reaction of the last few days but this kind of egregious abuse of parliamentary process, which, frankly, I would have thought, under an MMP Parliament, we have moved beyond.

New Zealand First was advised of this matter by a letter dated 16 February, which we received on 17 February, and which we actioned on 17 February. The matter was the subject of questions in the House last week. I know that Mr Simon Power, when he raised a question on it during the second reading of this bill, was unaware that the letter had been written. I would have thought that by now the National Party has acquainted itself with the letter written by the Minister, and that, perhaps at National’s caucus meeting or somewhere, its members have familiarised themselves with its contents and know what would be coming before the House. I compliment the Government on contacting all political parties. I am disappointed that the National Party does not seem to take any notice of correspondence sent to it. Perhaps it thinks that the time has come when it can ignore everything and just look at the polls, and that it does not have to do any work for the next 18 months. Well, New Zealand First is prepared to continue working, and looks forward to being in Government, none the less, after the next election, because we will continue to work.

Reading the letter, I see that on page 2 the very points raised by Mr Mapp are covered. It talks about the agreement, and about the European Commission seeking the conferral on it of various privileges, and suchlike. All the matters raised by Mr Mapp are in the letter. My concern when I read the letter was to make sure its points were transferred to the legislation, and I commend the law draftsperson on working so efficiently and promptly, in such a short space of time.

I reiterate the point I made at the beginning. We seem to have too many members in this Parliament. To have two National Party members trying to raise objections about something that is very simple indicates we have far too many members in this Parliament, and 99, as suggested by New Zealand First, is a much better number.

This is urgent legislation and the National Party does not seem to have grasped that fact. This legislation is important in order to have proper dialogue with the European Union. Dr Mapp and Dr Lockwood Smith do not seem to understand the way in which diplomatic situations work. It is a pity that they did not read the letter, and it is a pity that Dr Lockwood Smith, a farming representative, does not represent the wishes of the farming communities. When countries such as Poland, which has about 40 million people and a vast agricultural base, join the European Union we will want to make sure they understand what New Zealand is all about. People might think little countries like Estonia, Latvia, and Lithuania are not very important, but each of them will have a vote in the European Union. Although the voting patterns have not yet been finally decided, because of the German and French views, those countries will have votes, and the sooner we make contact with the European Union and have contact with those countries, the better. I recommend to members the very good Ministry of Foreign Affairs and Trade website on the matter. Of course, other countries like Slovakia, Slovenia, Malta, Cyprus, and Hungary will all be playing a part in the new European Union, and the sooner we get the European Union delegation here, and have a dialogue with it, the better. The sooner the National Party, and perhaps ACT, get on and support this legislation, the better.

I do not have any particular problem with clause 2A, but I believe that this is a debate and I am prompted by a sense of respect for this House to rise and comment on the last speech. It appears that New Zealand First members, those giants of international diplomacy, have the view that we have no contact with Latvia, Estonia, and those other countries. We have diplomats accredited to Rīga and those other capitals, and they visit them regularly. They live in The Hague, or in other capital cities, and we have a lot of contact already.

There seems to be a New Zealand First view that until we have passed this bill, no one from the European Union dares set foot here, which is a bit puzzling. It was a question I was asking the Minister in the chair, the Hon Marian Hobbs, but she has not chosen to rise and assist New Zealand First in its understanding of this matter, so perhaps the Government deserves its fate if New Zealand First chooses to lengthen this debate.

I will also comment on Dail Jones’ repeated assertions that when parties question the wording of a bill during the Committee stage, it is evidence that there are too many MPs. Mr Jones might reflect on the fact that in other bills, passed not too long ago, New Zealand First voted for the insertion of clauses referring to the principles of the Treaty of Waitangi. New Zealand First also voted against amendments seeking the removal of those references.

In this bill, I understand that the National Party has moved what I see as a very sensible amendment, and I would be willing to guarantee that New Zealand First members have not even bothered to ask what that amendment is. They will vote without having the faintest idea of what it proposes. They will vote because they have a view that the proper duty of members of this Chamber is to rubber-stamp what the Government asks them to rubber-stamp. They have a view that when their leader is miffed at National because it has dared to question his probity in a select committee, for the next few weeks they will spend all their time voting for the Government and not reading the legislation.

Instead of reading the English-Italian phrase book on his desk because he has a deep interest in speaking Italian, Dail Jones, who keeps repeating that we are simply wasting time, might choose to read some New Zealand law. He might decide to have a little glance at the bill and work out whether the Hon Lockwood Smith, Dr Wayne Mapp, myself, and others who have spoken, are doing exactly what MPs should do in the Committee stage of a bill. Dr Mapp is conferring with the Minister’s officials—I believe the Minister must have given consent. He is looking for reassurance that there is not something in this bill that no one has noticed until now—a matter that could be readily fixed by an amendment at this stage, which would save the time of the Chamber.

When a member like Mr Dail Jones rises to deride the attention being paid to the detail of a bill, and says that there are too many members of Parliament when those members take time to scrutinise a clause or move amendments, then people are entitled to know that Mr Jones is perusing his English-Italian phrase book and, no doubt, planning his next holiday on the Riviera—

💬 Dail Jones: In Rome.

In Rome, he tells me. If there are too many members in this Chamber, I suggest that we could easily make a few savings by dispensing with those who find that the English-Italian phrase book is the right thing to read when they are being asked to vote on a bill that confers privileges and immunities on people like those who would give evidence for Mr Milosevic; or, in this case, privileges and immunities on a mission from the European Union that apparently is too scared to come here until it is assured it will not be prosecuted. What have the members of that mission got to hide? What is it that they are worried they will be arrested for?

💬 Dr Wayne Mapp: Are they the new Soviets?

The new Soviets, yes! What taxes do they want to avoid? Are they too scared to bring their grog allowance through customs before they get this pushed through? The Minister is not explaining why it is so desperately urgent but, presumably, there is something that members of this mission lurking in Canberra really want to know that they will not be afflicted with when they come into New Zealand. We have not been told what it is, but Dail Jones apparently knows that it does not matter.

I seek the indulgence of the Minister in the chair, the Hon Marian Hobbs, to come back to the new clause 2A that we are supposed to be debating, which inserts a new section 9AB, and especially subsection (5). Despite my best efforts to sort out what on earth this subsection is doing, I still do not have a clear understanding. While I appreciate the Minister’s last attempt to explain it, it did not clarify it.

This is not really a big political issue—this is what Parliament is meant to be doing: scrutinising legislation. Too often legislation passes through this Parliament that no member understands. It goes through and we get into trouble, because no one understood what the hell it meant, and we end up with courts interpreting it and being surprised by them concluding things that we did not expect.

Let me be specific. What I do not understand about new subsection (5) is this: as I understand new section 9AB inserted by clause 2A, that section will give the Government the power, by Order in Council, to confer diplomatic privileges and immunities on European Commission delegates, officials, and their families, etc. Subsection (5) in new section 9AB refers to an order made under section 9(2)(a). Now, what I do not understand is that the very immunities and privileges that we would be conferring here are made under the new section 9AB. That is what we are inserting here—a new section 9AB to confer these diplomatic privileges and immunities. Why has subsection (5) been tagged on, stating: “An order made under section 9(2)(a)”? I understand that section 9(2)(a) is considered inadequate to do the job.

One reading of the current section 9(2)(a), (b), and (c) would suggest that maybe they could be used to confer the necessary diplomatic privileges and immunities on the European Commission delegation. Theoretically, it would be possible to use those sections, but in order to make it absolutely clear that there is no doubt that we can do this, new section 9AB is being inserted by this clause 2A that we are debating right now. Why do we then have subsection (5) attached to the end of it, which, we gather, has not been attached by the Government through policy, but because parliamentary counsel suggested that it should be tagged on the end?

Is it tagged there because we already have some diplomatic privileges and immunities granted under section 9(2)(a)? Have we already used section 9(2)(a), because we do not yet have new section 9AB, to grant some diplomatic privileges and immunities? Why is: “(5) An order made under section 9(2)(a) in respect of the European Commission” tagged on there, when at the moment we are putting in this new section 9AB in order to grant privileges and immunities to the European Commission? That is what I am just not understanding.

As I say, there is nothing big and political about this; it is just an MP trying to do his job to make sure that what we are passing in the Committee makes sense. I want to be sure that we are not putting into our law something that simply does not make sense. I am a little bit concerned, because I gather this is not so much about policy but is something that parliamentary counsel has suggested should be attached. I just wonder how much scrutiny it has had. I suspect that a Cabinet committee has not actually seen that bit.

I would really appreciate it if the Minister could explain why subsection (5) is needed—indeed, why an Order in Council might be made under section 9(2)(a), when this new section 9AB is being inserted to enable us to make orders to cover the European Commission. I am happy to resume my seat to enable that explanation to be given, because if that matter can be explained quite clearly, then we have no opposition to new clause 2A, at all.

The question was put that the amendment set out on Supplementary Order Paper 190 in the name of the Hon Phil Goff to insert new clause 2A be agreed to.

New clause 2A agreed to.

New clause 2B Amendments consequential on enactment of section 2A

The question was put that the amendment set out on Supplementary Order Paper 190 in the name of the Hon Phil Goff to insert new clause 2B be agreed to.

New clause 2B agreed to.

Clause 3 New sections 10D and 10E substituted